92 Decision Citation: BVA 92-29226
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-52 242 ) DATE
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THE ISSUES
1. Entitlement to service connection for disorders of both
shoulders and arms.
2. Entitlement to an increased (compensable) evaluation for
residuals of frozen feet.
REPRESENTATION
Appellant represented by: American Red Cross
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Jackson,
Mississippi. The veteran served on active duty from January
1941 to September 1945, and from March 1948 to June 1951.
In January 1991, the RO promulgated a rating decision which
denied entitlement to service connection for a disorder of
the left shoulder and continued the noncompensable
evaluation for residuals of frozen feet. The notice of
disagreement with the above determination was received in
April 1991. The statement of the case was issued in August
1991. The substantive appeal was received in October 1991.
The representative, American Red Cross, submitted a written
argument in November 1991. The case was received in
December 1991, and docketed at the Board in January 1992.
The case was referred to the representative in January 1992
and he submitted additional written argument in April 1992.
The issues for appellate consideration have been expanded to
include entitlement to service connection for disorders of
both arms and the right shoulder in view of the veteran's
contentions and Akles v. Derwinski, 1 Vet.App. 118 (1991);
Myers v. Derwinski, 1 Vet.App. 127 (1991); EF v. Derwinski,
1 Vet.App. 324 (1991); and Douglas v. Derwinski, 2 Vet.App.
103 (1992).
The issue of entitlement to service connection for disorders
of both shoulders and arms will be treated in the remand
part of this decision.
In his notice of disagreement the veteran requested an
increased rating for a left ear condition and an inguinal
hernia. However, these condition have not been service
connected. The RO should take appropriate steps to clarify
these issues with the veteran and his representative.
REMAND
Service connection has been granted for a shrapnel wound
scar at the lower pole of the right scapula which is rated
noncompensable. While the service medical records contain
no findings of a disorder of the arms and shoulders, the
post service dated medical records show that the veteran has
complained on an intermittent basis of painful
symptomatology of the upper extremities. The October 1990
special orthopedic examination by VA included radiographic
studies; however, more sophisticated studies such as a
computerized axial tomographic scan and a magnetic resonance
image of the upper extremities were not conducted. The
examiner expressed his belief that the veteran's upper
extremity symptomatology was related to arthritis; however,
the radiographic studies of both shoulders were negative for
any abnormalities. The veteran argues that his bilateral
upper extremity symptomatology has been constant since
active service. An opinion has not been expressed by a VA
examiner as to whether any abnormalities of the upper
extremities may be proximately related to the shell fragment
wound scar at the lower pole of the right scapula. Complete
post service treatment reports are not on file.
VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a)
(West 1991); 38 C.F.R. § 3.103(a) (1991). The United States
Court of Veterans Appeals has held that the duty to assist
the veteran in obtaining available facts and evidence to
support his claim includes obtaining medical records to
which the veteran has referred, adequate VA examinations,
records in the possession of VA, and pertinent evidence that
applies to all relevant facts. Sanders v. Derwinski,
1 Vet.App. 88 (1990); Murphy v. Derwinski, 1 Vet.App. 78
(1990); Littke v. Derwinski, 1 Vet.App. 90 (1990); and
Seavey v. Derwinski, 2 Vet.App. 262 (1992). This duty also
includes providing additional examinations by VA
specialists, when recommended or indicated. Hyder v.
Derwinski, 1 Vet.App. 221 (1991).
Under the circumstances of this case, we are of the opinion
that additional assistance is required. The case is
REMANDED to the RO for the following:
1. The complete treatment reports at the
VA Medical Centers in Dearborn and
Detroit, Michigan; Birmingham, Alabama;
and Jackson, Mississippi, should be
obtained and associated with the claims
file.
2. The veteran should be scheduled for
examinations by VA specialists in
neurology and orthopedics to determine
the nature and severity of any disorders
of the arms and shoulders, and whether
such disorders are proximately related to
or made worse by the service-connected
shrapnel wound scarring at the lower pole
of the right scapula. A computer axial
tomographic scan and magnetic resonance
image of the upper extremities, if
indicated, and any further indicated
special studies should be conducted. The
claims file, together with the above
requested evidence, should be made
available to the examiners prior to their
examinations. The examiners should
correlate all diagnostic studies and
furnish opinions with complete rationale
as to whether any disorders of the upper
extremities found on examination are
causally related to the service-connected
shrapnel wound scarring at the lower pole
of the right scapula.
Following completion of these actions, the RO should review
the evidence and determine whether the veteran's claim may
now be granted. If not, he and his representative should be
provided with a supplemental statement of the case which
includes application of 38 C.F.R. § 3.310(a) (1991). A
reasonable period of time for a response should be
afforded. Thereafter, the case should be returned to the
Board for further appellate review.
The purpose of this REMAND is to obtain clarifying
evidence. No action is required of the veteran until he is
notified.
Further adjudication of the issue of increased rating for
frozen feet will be postponed until the remand action is
completed.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(MEMBER TEMPORARILY ABSENT) JAN DONSBACH
JOAQUIN AGUAYO-PERELES
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).